Washington Supreme Court Clarifies Statute of Limitations Under State Public Records Act, Holds Equitable Tolling Available

The Washington Supreme Court has held that a one-year statute of limitations applies when an agency responds that it does not have records responsive to a public records act request. But, the Court also acknowledged that “equitable tolling” could apply under appropriate facts. Belenski v. Jefferson County, No. 92161-0 (September 1, 2016). Belenski sued Jefferson County more than two years after the county responded that it had no records responsive to Belenski’s request for the county’s Internet access logs. An intermediate Court of Appeals dismissed Belenski’s Public Records Act (“PRA”) claim as time-barred under the state’s two-year “catch-all” statute of limitations in RCW 4.16.130; but did not decide whether the PRA’s shorter, one-year statute of limitations in RCW 42.56.550(6) would apply. On subsequent review, the Supreme Court concluded that the PRA’s one-year statute of limitations applied.

In its ruling, the Supreme Court observed that a tension had developed in the appellate divisions over the appropriate starting point for the statute of limitations when an agency’s response does not fall strictly within the two types of responses listed in RCW 42.56.550(6) (an agency’s claim of exemption or the last production of records on an installment basis). Read more here. The Court rejected a narrow reading of the statute:

The statute does not use terms like "either" or "only" to limit the triggering events, nor does it set forth a definitive list by numbering the events as (1) and (2). Instead, the statute of limitations' reference to bringing suit within one year of "the agency's claim of exemption or the last production of a record on a partial or installment basis" indicates that the legislature intended to impose a one year statute of limitations beginning on an agency's final, definitive response to a public records request. RCW 52.56.550(6). This theme of finality should apply to begin the statute of limitations for all possible responses under the PRA, not just the two expressly listed in RCW 42.56.550(6).

Belenski Opinion at 9 (emphasis added).

However, the Court remanded the case to the trial court for consideration of equitable tolling, finding that Belenski and amici had raised “legitimate concerns that allowing the statute of limitations to run based on an agency’s dishonest response could incentivize agencies to intentionally withhold information and then avoid liability due to the expiration of the statute of limitations.” Two dissenting justices would have held that Belenski’s suit was timely because the county’s alleged “false response” never triggered the statute of limitations.

Lost But Not Forgotten: Public Records Act Violation?

A prisoner at the Washington State Coyote Ridge Corrections Center requested a document that the state could not find. The prisoner sued. A Washington appellate court on August 18, 2016 ruled that the state’s Public Records Act (PRA) did not subject a government to liability for lost records - or, even impose a burden to prove when the document was lost. Jones v. Dep’t of Corr. The court recognized that the PRA does not allow an agency to destroy records subject to a pending request. But, the court acknowledged that an “agency is not required to produce a document that does not exist.” There was no evidence that the Department unlawfully destroyed the requested form. And, the court pointed to federal court rulings finding a “government agency in compliance with the freedom of information act when it performed a reasonable search despite evidence that some requested records were accidently lost.” While an unpublished opinion, the case is useful in recognizing that the PRA “is not intended to penalize inadvertent loss, a phenomenon endemic to a large organization.”

Federal Shipping Act Preemption and Standing Addressed by Washington Court of Appeals Under State's Open Public Meetings Act

Plaintiff Arthur West filed suit under Washington State’s Open Public Meetings Act, ch. 42.30 RCW (“OPMA”), against the Port of Seattle and Port of Tacoma for excluding West and the public from a series of meetings held between the two ports in 2014. In West v. Seattle Port Commission, et al., No. 73014-2-I (July 5, 2016), the Washington Court of Appeals held that West had standing to pursue his claims under the OPMA, but also held that the Federal Shipping Act of 1984, 46 U.S.C. §§ 40101-41309, preempted application of the OPMA to the ports’ meetings. The Court therefore affirmed dismissal of West’s claims.

Standing Under the OPMA
In holding that West had standing to bring suit, the Court first emphasized that the standing requirements in the OPMA are very broad, allowing “[a]ny person” to bring an enforcement action for violation of the Act. See RCW 42.30.120, .130. It also rejected application of federal standing requirements in this context, explaining that federal case law on standing does not automatically apply to Washington courts interpreting Washington law. The Court of Appeals concluded that the ports had failed to show that West lacked standing in this case.

Federal Law Conflict Preemption
West’s lawsuit was nevertheless dismissed, because the Court also held that the Federal Shipping Act preempted the OPMA on these facts. The Shipping Act allows ports to work cooperatively in furthering the Act’s purposes, including development of “competitive and efficient ocean transportation.” 46 U.S.C. § 40101. Meeting minutes are required by the Shipping Act’s implementing regulations, but are exempt from disclosure under the Freedom of Information Act. Id. § 40306; 46 C.F.R. § 535.701.

Although the Court of Appeals agreed with West that the Shipping Act did not expressly require closed meetings, the Court found that opening the meetings to the public under the OPMA would frustrate Congress’s purposes and objectives:

Allowing the public, including possible competitors, access to the Ports’ meetings on these matters would make it far more difficult for the Ports to develop competitive approaches. As the Ports argue, open meetings here would “give the Ports’ competitors access to their strategies and would place the Ports at a competitive disadvantage vis-a-vis marine terminal operators (both here and abroad) who were not subject to similar open public meetings acts.”

Requiring the Ports to open their meetings to the public would frustrate Congress’s intent to have American marine terminal operators be competitive in international maritime commerce. We hold that the Shipping Act preempts this application of the OPMA, because the OPMA would do major damage to the Shipping Act’s objectives.

The Court’s ruling that the OPMA was preempted in this case is limited to meetings held pursuant to the Federal Shipping Act. Port districts and their commissioners remain subject to the requirements of the OPMA in other contexts.

New Penalty Provisions of Washington's Open Public Meetings Act Take Effect

Washington State’s Open Public Meetings Act (OPMA) has new penalty provisions that take effect today. Previously, a person who knowingly violated the OPMA was subject to personal liability in the form of a $100 civil penalty. RCW 42.30.120. Under the legislature’s 2016 amendments, the penalty has increased to $500 for a first violation and $1000 for any subsequent violation.

New Attorney General Guidance on Washington State's Open Public Meetings Act

The Washington State Office of the Attorney General has issued new guidance on the state’s Open Public Meetings Act (OPMA), Chapter 42.30 RCW. The publication addresses frequently asked questions about boards, commissions, and other public agencies subject to the OPMA that appoint or hire persons for their agencies, such as filling a board vacancy or hiring an executive director.

Click here to view a copy of “Open Public Meetings Act Guidance On Frequently Asked Questions About Processes To Fill Vacant Positions By Public Agency Governing Boards (And Some Suggested Practice Tips)” (June 1, 2016).

The FAQ also refers to the 2016 amendments to the OPMA increasing civil penalties for knowing violations, effective June 9, 2016 (see FAQ Question #15).

Washington Court Of Appeals Determines When Records Have Been "Produced" Under Public Records Act To Trigger Statute Of Limitations

In White v. City of Lakewood, No. 47079-9-II (May 25, 2016), Division II of the Washington Court of Appeals applied a form of “mailbox rule” to the state Public Records Act (PRA) in defining when records have been “produced” sufficient to trigger the PRA’s one-year statute of limitations. Additionally, the Court reiterated that the statute of limitations is not triggered by an invalid claim of exemption.

White filed three public records requests with the City of Lakewood for documents pertaining to a search warrant. The city withheld responsive records pursuant to the categorical exemption for open and active police investigations under RCW 42.56.240 and Newman v. King County, 133 Wn.2d 565, 947 P.2d 712 (1997), although it later produced certain documents. White filed suit challenging the city’s response to all three requests.

First, the Court of Appeals held that White’s claims regarding his first PRA request were not time-barred. Because the city had admitted to the Court at oral argument that its police investigation was not, in fact, active, it had improperly invoked the Newman exemption. Accordingly, the one-year statute of limitations was not triggered by the city’s invalid claim of exemption, pursuant to Rental Housing Association of Puget Sound v. City of Des Moines, 165 Wn.2d 525, 199 P.3d 393 (2009).

Next, the Court considered the statute of limitations as to White’s second PRA request. RCW 42.56.550(6) requires that a PRA action “must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.” In construing when records have been “produced” under the statute, the Court determined that the statute of limitations is triggered when the agency “brings all of the documents together and makes that collection of documents available to a delivery service for delivery to the requestor.” Slip Op. at p. 13. In White’s case, his claims were time-barred because the city had placed the letter and responsive records in the city’s outgoing mailbox more than one year prior to White bringing suit.

The Court of Appeals then remanded the case to the superior court for consideration of the proper penalty to be awarded White based on the city’s improper response to his first and third PRA requests.

Washington Supreme Court Reviews "Other Statute" Exemption in Ruling on Release of Sex Offender Records Under the Public Records Act

In Doe v. Washington State Patrol, the Washington Supreme Court held that the state’s community notification statute concerning registered sex offenders is not an “other statute” exemption under the Washington Public Records Act (PRA).

The requester in Doe sought records pertaining to level I registered sex offenders (those classified as least likely to reoffend) from the Washington State Patrol and the Washington Association of Sheriffs and Police Chiefs (WASPC). The agencies sent notice of the scheduled disclosure to affected sex offenders, who sued to prevent release. The trial court agreed with the plaintiffs that level I sex offender registration records are exempt from disclosure under the PRA’s “other statute” exemption because the community notification statute, RCW 4.24.550, provided the exclusive mechanism for public disclosure of sex offender records. The “other statute” exemption allows withholding of records where the PRA “or other statute . . . exempts or prohibits disclosure of specific information or records.” RCW 42.56.070(1). The trial court issued an injunction preventing release of the records.

In a 7-2 decision, the Washington Supreme Court reversed. The court first observed that an “other statute” that exempts disclosure “does not need to expressly address the PRA, but it must expressly prohibit or exempt the release of records.” Opinion at 7. The court explained that the community notification statute was not prohibitory, but rather is framed in terms of what an agency is permitted to, or must, do. Opinion at 13. After discussing prior court decisions construing the “other statute” exemption, the court concluded:

The PRA, and our case law surrounding it, demands that an “other statute” exemption be explicit. Where the legislature has not made a PRA exemption in an “other statute” explicit, we will not. Because of the presumption of disclosure under the PRA, the lack of any prohibitory language—save for a mandate against confidentiality—or explicit exemption in RCW 4.24.550 and this state’s precedent in “other statute” cases, we hold that RCW 4.24.550, specifically RCW 4.24.550(3)(a), is not an “other statute” under RCW 42.56.070(1) and that level I sex offender registration information is subject to disclosure under a PRA request.

Opinion at 21-22.

The court also determined that, although the requester prevailed, she was not entitled to penalties or attorney’s fees under the PRA. Because the Washington State Patrol and WASPC had taken the position that the records were subject to disclosure, the requester had not prevailed “against an agency” under RCW 42.56.550(4), but rather had prevailed against a private party seeking to enjoin disclosure. Opinion at 23.

In a dissenting opinion, two justices asserted that the majority’s opinion articulates a “brand new and extremely rigid interpretation” of the PRA’s “other statute” exemption, and allows people to circumvent the community notification statute’s clear disclosure limits by simply filing a public records request.

What is an Agency's Obligation When a Records Request May Suggest Requester's "Commercial Purpose"?

A Washington Court of Appeals recently addressed this question in a case involving a request from the Freedom Foundation to a state agency for lists of names of home healthcare workers and their contact information. The union representing the workers opposed the disclosure. SEIU Healthcare v. DSHS and Freedom Foundation (No. 446797-6-II, April 12, 2016). The State’s Public Records Act (PRA) “shall not be construed as giving authority to any agency . . . to give, sell or provide access to lists of individuals requested for commercial purposes, and agencies . . . shall not do so unless specifically authorized or directed by law.” RCW 42.56.070(9). The union argued this provision prohibited disclosure, and was not just an exemption from disclosure. The Court rejected the argument, finding “the distinction between an exemption and a prohibition largely is immaterial. [Another section of the PRA] does not distinguish between the two, referring to any other statute that ‘exempts or prohibits’ disclosure. . . . We conclude that RCW 42.56.070(9) must be construed in favor of disclosure regardless of whether [RCW 42.56.070(9)] states an exemption or prohibition.”

The Court then determined if the request was for “commercial purposes”. The Freedom Foundation asserted that the request was for communication to workers about their constitutional rights, and not to solicit contributions. The Court applied the following definition in ruling in favor of the Foundation’s request: “commercial purposes” in RCW 42.56.070(9) includes a business activity by any form of business enterprise intended to generate revenue or financial benefit. The Court found that the Foundation was not seeking to generate revenue or financial benefit.

In its decision, the Court added to an agency’s already-difficult burden in responding to PRA requests. Because RCW 42.56.070(9) expressly states that a government agency “shall not” provide access to lists of individuals requested for commercial purposes, the Court determined there is “some burden on the agency to avoid disclosing lists of individuals to a party intending to use the list for commercial purposes.” While the PRA gives no specific guidance, the Court held that an “agency must investigate when it has some indication that the list might be used for commercial purposes. Whether an agency must investigate will depend on a case-by-case determination based on the identity of the requester, the nature of the records requested, and any other information available to the agency.” And, an agency “must at least require a party requesting a list of individuals to state the purpose of the request.” The Court gives no further guidance.

The Washington Attorney General model rules advise that “[a]n agency may require a requestor to sign a declaration that he or she will not put a list of individuals in the record to use for a commercial purpose.” WAC 44-14-06002(6) (citing AGO 1988 No. 12 at 10-11 (agency could require requestor to sign affidavit of noncommercial use)). The Court concluded this is no longer sufficient. The agency must additionally require the declarant to state the purpose of the request if RCW 42.56.070(9) is implicated:

DSHS suggests that if an agency has an obligation to investigate, an affirmation from the requesting party that the intended use of the list is not for commercial purposes is sufficient. The problem with such an affirmation is that it allows the requesting party to control whether a list of individuals will be released without any independent inquiry by the agency. Therefore, merely requiring an affirmation from the requesting party is not sufficient to satisfy an agency’s obligation to investigate under RCW 42.56.070(9).

In light of this ruling, if an agency fails to obtain a declaration from the requestor that both disclaims use for commercial purposes and states the requestor’s intended purposes, then releasing the record risks waiving immunity under RCW 42.56.060 if the agency gets it wrong. And, a wrongful withholding (whether or not founded on a declaration) could still subject the agency to penalties and fees. A declaratory judgment action might be the agency’s only recourse. Otherwise, there may be too much risk of agency exposure under the PRA for a wrong decision and for withholding of requested records.

In a 5-4 decision, the Washington Supreme Court unscrews the hinges from the already open door on PRA penalties

In Wade’s Eastside Gun Shop, Inc. v. Department of Labor & Industries, the Washington Supreme Court holds that trial courts have discretion to impose Public Records Act penalties on a “per page” basis. The Court considered a number of factors in affirming the trial court’s considerable discretion. Penalties are assessed for withholding “such public record,” and the broad definition of a “public record” includes any “writing” (which, in turn, includes “all papers”). “A single page fits within the plain language of this broad definition.” The PRA also expressly provides that the penalty determination “shall be within the discretion of the court.” Finally, modern public records may be difficult to segregate under any bright-line rule (e.g., metadata, compiled transcripts of individual text messages, etc.). Ultimately, the Court reasoned, trial courts need flexibility “to respond appropriately to PRA violations in this age of rapidly advancing technology.” Under Wade’s, a trial court will continue to enjoy broad discretion to apply penalty formulas that result in a penalty amount that the court believes is appropriate to a particular PRA violation.

The Court in Wade’s also held that Department of Labor & Industries investigation records fall outside of the court-made “categorical” exemption to disclosure of records in an open and active police investigation file. Unlike criminal investigations where the early release of information might “impede the apprehension of an as-yet-unknown suspect,” employers subject to L&I civil investigations already know they are being investigated. There is little risk to losing the suspect. Instead of relying on the “categorical” exemption, L&I must prove that withholding the record is essential to effective law enforcement on the facts of the case under RCW 42.56.240(1). L&I must similarly explain why the exemption applies in its initial denial statement to the PRA requestor.

The Court concluded by detailing several ways L&I improperly delay releasing records after providing third party notice. Providing 15 days for a third party to obtain a court order to enjoin a record’s release was too long, in part, because L&I delayed many months in initially notifying the third party. Extending that injunction window without a court order as a “courtesy” to third parties when L&I believed the records were not exempt was also improper. Finally, L&I should have been ready to release the records on the day the trial court compelled disclosure. Absent temporary relief for time to appeal, a trial court may assume that the agency should have been diligently preparing the records for immediate release. Here, L&I incurred nearly $150,000 in penalties for the 9-day period starting with the trial court’s order compelling release and ending with the agency’s final production.

New records retention schedule for Washington State law enforcement agencies

The Local Records Committee was created by Chapter 41.14 RCW and its 3 members are the State Archivist and representatives of the State Auditor and Attorney General offices. The Committee approved on December 3, 2015 a new records retention schedule for Washington State local law enforcement agencies. These changes take effect immediately. The modifications to the retention schedule are minor, with most clarifying confusing or unclear sections. For a summary of the changes, click here.

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